DeCorte v. Robinson, 87570

• Decision Date: 15 September 1998
• Docket Number: No. 87570,87570
• Parties: Michael DeCORTE, Plaintiff/Appellee, v. Gary ROBINSON, Defendant/Appellee, and The City Of Broken Arrow, Oklahoma, Defendant/Appellant.
• Court: Oklahoma Supreme Court

Page 358

969 P.2d 358

1998 OK 87

Michael DeCORTE, Plaintiff/Appellee, v. Gary ROBINSON, Defendant/Appellee and The City Of Broken Arrow, Oklahoma, Defendant/Appellant.

No. 87570.

Supreme Court of Oklahoma.

Sept. 15, 1998.

Rehearing Denied Dec. 22, 1998.

Certiorari to the Oklahoma Court of Civil Appeals Division I

¶0 Certiorari granted to review the Court of Appeals' opinion reversing judgment based on the jury verdict in Tulsa County District Court, Honorable Ronald Shaffer presiding. We find that the verdict is not irreconcilably inconsistent, is supported by competent evidence, and that the jury was properly instructed.

CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS' OPINION VACATED; JUDGMENT OF DISTRICT COURT AFFIRMED.

Greg A. Farrar, Farrar & Farrar, P.C., Tulsa, for Appellee Michael DeCorte.

K. Clark Phipps, Galen L. Brittingham, Nelson J. Christiansen, Atkinson, Haskins, Nellis, Boudreaux, Holeman, Phipps & Brittingham, Tulsa, for Appellee Gary Robinson.

Michael R. Vanderburg, City Of Broken Arrow, Broken Arrow, for Appellant City of Broken Arrow.

SUMMERS, V.C.J.:

¶1 The jury returned a verdict in favor of an injured plaintiff against the City of Broken Arrow for the misconduct of the city's off-duty police officer. The City appeals. We must determine (1) whether the verdict was irreconcilably inconsistent, (2) whether it was supported by competent evidence, and (3) whether the jury was properly instructed. Upon review we affirm.

¶2 On the day in question off-duty Broken Arrow Policeman Gary Robinson was driving in his private car with his wife in Tulsa. They had been to dinner where, by his own admission, Robinson had two alcoholic drinks (Margaritas). Robinson saw a car which he considered to be driving dangerously, and began to follow it on the Broken Arrow Expressway. There was some controversy whether that car was Plaintiff Michael DeCorte's car, but Robinson at least was eventually following DeCorte's car. In his pursuit Robinson reached speeds of up to 85 miles per hour, sometimes driving on the center median. Robinson contacted the Broken Arrow police department dispatcher, using a cellular telephone, to report what was happening. The only instruction he received was to stay on the phone.

¶3 DeCorte, realizing he was being pursued, stopped his car in a convenience store parking lot in Broken Arrow. Robinson was informed over the cellular phone that an on-duty police officer was almost at the store's location. Robinson nonetheless exited his car and approached the other car, with DeCorte still in it. Robinson identified himself as an off-duty policeman. Although there is also some controversy as to exactly what then ensued, the record indicates Robinson drew a handgun, pointed it at DeCorte and reached into DeCorte's car to get the key. DeCorte was either then pulled from or exited his car on his own.

¶4 After DeCorte was out of his car Robinson attempted to subdue him with a "carotid chokehold." When Officer Smith of the Broken Arrow police department arrived, he and Robinson subdued and handcuffed DeCorte. DeCorte was placed under arrest and was placed in the back of Officer Smith's police car by Robinson.

¶5 DeCorte testified Robinson then struck him and grabbed him by the throat while DeCorte was handcuffed and seated in the back seat of the police car. Robinson denied this. Robinson was pulled out of the back of the police car by Officer Smith, who testified he could not see if Robinson hit DeCorte. DeCorte's breath test did not reach the statutory level of intoxication. All charges against him were ultimately dropped. During the incident DeCorte suffered a herniated disk in his neck which required surgery. The City terminated Robinson as a result of the incident, citing violation of a number of City's operating polices and procedures.

¶6 DeCorte brought suit against the City of Broken Arrow and Robinson, alleging civil rights violations, false imprisonment, false arrest, and assault and battery. The court directed a verdict in favor of the City as to civil rights violations. As to the other allegations the jury returned a verdict in favor of DeCorte for $30,000.00 against the City. ¹ The jury also returned a verdict in favor of DeCorte against Robinson for $3000.00 damages for violation of civil rights and $1000.00 in punitive damages. The jury was asked to determine, in a special finding, whether Robinson was acting in the scope of his employment as a Broken Arrow police officer. The jury answered this question in the affirmative. The City of Broken Arrow appealed. Robinson did not. ²

¶7 The Court of Civil Appeals reversed the judgment and remanded. It reasoned that the verdict was internally inconsistent, that Robinson could not have been acting within the scope of his employment while at the same time acting in such a wanton manner as to warrant punitive damages. The Court held that because Robinson could only be considered to have been within the scope of his employment if he was acting in good faith, the award of punitive damages was inconsistent. We have granted certiorari, and now affirm the jury verdict.

¶8 The Governmental Tort Claims Acts serves as a waiver of immunity in certain instances. 51 O.S.1991 § 152.1(B). Section 153 states that the state or political subdivision "shall be liable for loss resulting from its torts or the torts of its employees acting within the scope of their employment...." Section 152(9) defines "scope of employment" as "performance by an employee acting in good faith within the duties of his office or employment or of tasks lawfully assigned by a competent authority including the operation or use of an agency vehicle or equipment with actual or implied consent of the supervisor of the employee, but shall not include corruption or fraud." (emphasis added)

¶9 It is within this context that we must consider whether the jury's verdict was inconsistent. The long-standing rule of this Court is that a verdict will be affirmed if there is any theory, supported by competent evidence, which could serve as the basis for the verdict. Eversole v. Okla. Hosp. Founders Ass'n, 1991 OK 80, 818 P.2d 456, 458 (Okla.1991); Pine Island RV Resort Inc. v. Resort Management Inc., 1996 OK 83, 922 P.2d 609 (Okla.1996). Even when the award itself or amount of damages appears inconsistent with a finding of liability, the jury's verdict will be affirmed if there is a theory under which the damages (or lack thereof) could be supported. Wright v. Central Oklahoma Milk Producers Ass'n, 1973 OK 15, 509 P.2d 464 (Okla.1973)(verdict affirmed where plaintiff was awarded damages for injury but no damages for pain and suffering because jury could have determined that pain suffered arose from a preexisting condition); Essary v. Fitts, 1970 OK 58, 467 P.2d 173 (Okla.1970)(Court upheld a verdict in which the defendant was found responsible for automobile accident but plaintiff was awarded no damages); Higginbotham v. Hartman, 1970 OK 25, 465 P.2d 478 (Okla.1970).

¶10 As authority for its position the City cites Parker v. City of Midwest City, 1993 OK 29, 850 P.2d 1065 (Okla.1993). In Parker the plaintiff brought suit against the City for malicious prosecution based upon acts of a policeman. The elements of the cause of action for malicious prosecution include malice; proof of malice is required in order to recover. Page v. Rose, 546 P.2d 617, 620 (Okla.1976). Because a city's statutory liability does not extend to acts of its employees committed in bad faith, we held that under the Governmental Tort Claims Act the City could not be held liable for malicious prosecution.

¶11 In the later case of Nail v. City of Henryetta, 1996 OK 12, 911 P.2d 914, 917 (Okla.1996) we held that the question of whether a police officer was acting in the scope of his employment was a question of fact for the jury when there were conflicting inferences that could be drawn. The City urged that the police officer's conduct of shoving down an individual already arrested was outside the scope of employment, and that the rule of Parker applied. We held that it did not. We explained that unlike a situation where the cause of action requires a showing of malice, that case presented a question of fact as to whether the shoving was outside the scope of employment. Although it was clear that the arrest itself was within the scope of employment, it was a question for the jury to decide if the officer's actions later went beyond his scope of employment.

¶12 We first look to whether there is evidence to support the jury's special finding that Robinson was...